Global Civil Procedure Trends in the Twenty-First Century

Abstract

Recent scholarship in comparative civil procedure has identified “American exceptionalism” as a way to describe practices which set the United States apart from most of the world, particularly the civil law world. This Article focuses on two areas of “exceptionalism”: pleading standards and the role of judges. Specifically, pleading requirements are considerably less strict in the United States compared to other countries. Additionally, U.S. judges are less active in conducting litigation than their counterparts elsewhere, especially judges in the civil law tradition. This Article traces some modern trends toward convergence between the United States and the rest of the world. With regard to pleading standards, two recent Supreme Court cases, Bell Atlantic v. Twombly and Ashcroft v. Iqbal, have moved U.S. pleading standards closer to the rest of the world. With regard to judicial roles, convergence has been bilateral, with U.S. judges becoming more “managerial” and European judges becoming less so. Additionally, civil law judges have begun to enjoy broader discretion, increasing their prestige and visibility in a manner similar to the U.S. judge. The final focus of the Article is whether these recent trends represent opportunities for improvement or an unwelcome disruption for the U.S. procedural system.